The
petitioners were some of the accused in S.C.No.1/2013 on the file of Special
Court for Cases filed under the National Investigation Agency Act. They were
convicted of the offences under Sections 120-B, 153-A, 326 and 327 IPC, Section
3 of the Explosive Substances Act and Section 16 read with Section 18 of the
Unlawful Activities (Prevention) Act. They have been sentenced to undergo imprisonment
for various periods, the maximum of which is eight years. They are undergoing
imprisonment. They were denied parole on the basis of the provision in Rule
397(l)(v) of the Kerala Prison and Correctional Services (Management) Rules,
2014. This is challenged in these writ petitions mainly on three grounds. The
first ground is that the Prison Act does not empower making a Rule prohibiting granting
parole to accused convicted of the offences relating to national security. The
second ground is that the offence under Section 16 of the Unlawful Activities
(Prevention) Act has nothing to do with national security, and so, Rule
397(l)(v) is not applicable to the case of the petitioners. The third ground is
that by Ext.P4 order this Court granted ordinary parole for 15 days to the 8th accused,
who also was convicted of the same offences.

2. Heard
the learned counsel for the petitioners and the learned Senior Government
Pleader.

3. It
is in view of the prohibition in Rule 397(l)(v) of the Kerala Prison and
Correctional Services (Management) Rules, 2014, the petitioners were denied
parole. The Rule runs as follows:

“Any person convicted in respect of any offence relating
to any law pertaining to smuggling or violation of foreign exchange regulations
or national security or counterfeiting of currency and coins shall not be
eligible for leave.”

4. The nature
of the right to parole is relevant. In Jameel
Ahmed v. State of Rajasthan and Others [2007 KHC 6345], Rajasthan High Court held that remission and
parole are not vested right of the prisoners and they are privileges granted by
the State to convicted persons.

5. The
learned counsel for the petitioners submits that unless there is a prohibition
in the Unlawful Activities (Prevention) Act for granting parole to convicts, it
cannot be denied to such convicts. On the other hand, the learned Special
Government Pleader submits it need not do so. He relies on the decision of this
Court in Abubaker v. State of Kerala
[1994(2) KLT 842]. Clause
(VI) of Rule 452(BB) of the Kerala Prison Rules provided that the person
convicted in respect of an offence related to narcotic drugs and psychotropic
substances shall not be eligible for leave. There
was no prohibition in the Narcotic Drugs and Psychotropic Substances Act. This
Court found that the prohibition in the Rule referred to above is a valid one.
The decision in Mohamed Moin Faridulla
Qureshi v. State of Maharashtra and Others [2009 CRL. L.J.3807] is relied on by the learned counsel for the writ petitioners
for some other purpose. The said case related to Bombay bomb blast case. The
convicts were denied parole. The Bombay High Court held that since there was no
prohibition in the statute for granting bail to such convicts, they were
entitled to parole. But certain observations in that judgment are relevant. In Bombay
the provisions relating to parole were contained in Prisons (Bombay Furlough
and Parole) Rules, 1959. The Division Bench which disposed of the writ petition
observed that if the legislature had the intention that the prisoners in serious
matters like Bombay bomb blast case should not be granted parole, it could have
amended the provisions in the Prisons (Bombay Furlough and Parole) Rules, 1959.
It follows that the prohibition in granting parole need not be in the Act, the
violation of which the convicts were convicted.

6. In
Avtar Singh v. State of Haryana and Another [AIR 2002 SC 1109], the provisions which came up for consideration
were contained in the Good Conduct Prisoners (Temporary Release) Act, 1988 of
Haryana, which contained the prohibition in granting parole to convicts. This
also indicates that the prohibition in granting parole need not be contained in
the Act under which the convicts were convicted.

7. In
the light of the decision in Avtar
Singh v. State of Haryana and Another [2002 KHC 1816] = [AIR 2002 SC 1109], also it may be held that the argument that
since the Unlawful Activities (Prevention) Act does not prohibit granting
parole to a person convicted of an offence under the Act parole cannot be denied
to the petitioners does not hold water.

8. According
to the learned counsel for the petitioners, the Act for which the petitioners
were convicted did not affect the national security and so Rule 397(l)(v) is
not applicable to the petitioners' case. The Rule may be quoted again. “Any
person convicted in respect of any offence relating to any law relating to smuggling
or violation of foreign exchange regulations or national security or
counterfeiting of currency and coins shall not be eligible for leave.”

9. The
argument advanced by the learned senior Government Pleader is that the Act for
which an accused is convicted need not affect national security to attract the
prohibition contained in the Rule. He would submit that it is sufficient that
the statute relates to national security. The plain meaning of the provision in
the Rule quoted above definitely shows that to attract the prohibition it is
sufficient that the offence for which the persons were convicted related to a
statute relating to national security. In other words, the act of the convict
need not affect national security. The
Act was enacted to provide for more effective prevention of certain unlawful
activities of individuals and associations and dealing with terrorist
activities and for matters connected there with. The object of the Act is to
make powers available for dealing with activities directed against the
integrity and sovereignty of India. So, there cannot be any doubt that the Act
related to the security of India. Any offence under the Act attracts the
prohibition contained in Rule 397(l)(v) of the Kerala Prison and Correctional
Services (Management) Rules, 2014.

10. Learned
counsel has relied on the decision of the Supreme Court in Mohd.Iqbal M. Shaikh and Others v. State of Maharashtra [(1998) 4
Supreme Court Cases 494] and People's Union for Civil Liberties and Another v. Union of India
[(2004) 9 Supreme Court Cases 580]. Those
decisions only say that a person convicted for terrorist acts cannot be denied parole
unless there is a prohibition contained in a statute. In the case at hand the
Rule quoted above prohibits granting parole to the petitioners. The two
decisions of the Supreme Court are not applicable to the facts of this case.

11. Another
decision cited by the learned counsel for the petitioners is the one in Asfaq v. State of Rajasthan and others [AIR 2017 SC 4986]. The Supreme Court held that parole cannot be
denied merely on the ground that the crime committed by the convict is a
heinous crime. There is no dispute regarding it. The Supreme Court did not hold
that when there is a prohibition in a statute the convict can be released on
parole in any case. So, the decision is not applicable to the facts of the case.

12. Yet
another decision pressed in by the learned counsel for the petitioners is the
decision of the Supreme Court in Dadu
alies Tulsidas etc., v. State of Maharashtra [AIR 2000 SC 3203]. The provision which came up for consideration
in that case was the one contained Section 32-A of the Narcotic Drugs and Psychotropic
Substances Act. It did not relate to granting of parole. So,
the said decision is of no assistance to the petitioners.

13. The
last ground on which the relief is prayed for by the petitioners is that the 8th accused
was granted ordinary parole for 15 days pursuant to the directions issued by
this Court. That is not relevant for the present purpose. In the present case,
the question is whether the prohibition contained in Rule 397(l)(v) of the
Kerala Prison and Correctional Services (Management) Rules, 2014 is valid and
whether it is applicable to the present case.

14. In
the light of the above discussion, I hold that in view of the prohibition
contained in Rule 397(l)(v) of the Kerala Prison and Correctional Services
(Management) Rules, 2014, the petitioners are not entitled to parole.